Posts tagged "White"

Commonwealth v. White (Lawyers Weekly No. 10-165-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11919   COMMONWEALTH  vs.  ROBERT E. WHITE.       Plymouth.     February 9, 2016. – October 19, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1]     Rape.  Limitations, Statute of.  Evidence, Indictment, Corroborative evidence, Prior misconduct.  Practice, Criminal, Indictment, Instructions to jury.       Indictment found and returned in the Superior Court Department on October 3, 2008.   The case was tried before Richard J. Chin, J.   The Supreme Judicial Court granted an application for direct appellate review.     Kathryn Hayne Barnwell for the defendant. Robert C. Thompson, Assistant District Attorney, for the Commonwealth.     LENK, J.  The defendant was convicted in 2014 of one count of rape of a child, G. L. c. 265, § 23.  The underlying indictment, returned in 2008 and amended in 2014, alleged that he had raped his daughter on “diverse dates” between September 29, 1979, and 1981, when she was between four and six years old.  On appeal, the defendant chiefly raises two sets of claims, both of which concern the statute of limitations, G. L. c. 277, § 63.  First, he argues that the Commonwealth did not meet its burden at trial of proving beyond a reasonable doubt that the indictment was timely brought, and, in addition, that the trial judge incorrectly instructed the jury as to that issue.  Second, he maintains that, even if the indictment were timely brought, the Commonwealth failed to provide the requisite independent corroboration of any incidents of rape that occurred more than twenty-seven years before the indictment was returned.  See G. L. c. 277, § 63.  He maintains, in this regard, that the corroboration provided by the Commonwealth at trial — consisting exclusively of evidence of uncharged sexual misconduct — was insufficient.  He argues also that the judge failed to instruct the jury as to the corroboration requirement. We conclude, with respect to the first set of issues, that the Commonwealth presented sufficient evidence from which the jury could determine, beyond a reasonable doubt, that the indictment was timely returned.  We also conclude, however, that the jury instruction concerning how to make this determination was incorrect, that the erroneous instruction precluded the jury from properly ascertaining whether the indictment was timely, and that the incorrect instruction resulted in a substantial risk of a miscarriage of justice.  Accordingly, on this basis alone, the defendant’s conviction must be vacated and set […]

Read more...

Posted by Massachusetts Legal Resources - October 19, 2016 at 2:52 pm

Categories: News   Tags: , , , ,

Commonwealth v. White (Lawyers Weekly No. 10-154-16)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11917   COMMONWEALTH  vs.  ONYX WHITE.       Suffolk.     December 8, 2015. – September 28, 2016.   Present:  Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.[1]     Cellular Telephone.  Constitutional Law, Search and seizure, Probable cause.  Probable Cause.  Search and Seizure, Probable cause, Warrant, Fruits of illegal search.  Practice, Criminal, Warrant.       Indictment found and returned in the Superior Court Department on May 19, 2010.   A pretrial motion to suppress evidence was heard by Patrick F. Brady, J.   An application for leave to file an interlocutory appeal was allowed by Cordy, J., in the Supreme Judicial Court for the county of Suffolk, and the appeal was reported by him.     Cailin M. Campbell, Assistant District Attorney (David J. Fredette with her) for the Commonwealth. J.W. Carney, Jr. (Danya F. Fullerton with him) for the defendant. The following submitted briefs for amici curiae: David A.F. Lewis, Alexis L. Shapiro, & Christine Dieter for Massachusetts Association of Criminal Defense Lawyers. Vivek Krishnamurthy & Andrew J. Sellars for American Civil Liberties Union of Massachusetts. Alan Butler & John Tran, of the District of Columbia, Marc Rotenberg, & Caitriona Fitzgerald for Electronic Privacy Information Center. Afton M. Templin for Committee for Public Counsel Services.     LENK, J.  In February, 2010, a Boston police detective investigating an armed robbery and shooting at a convenience store went to the defendant’s high school, after suspicion had focused on the defendant as one of the three perpetrators.  The detective spoke with a school administrator, who informed him that, pursuant to school policy, she was holding the defendant’s cellular telephone.  After consultation with his supervisor, the detective seized the telephone to prevent the defendant from retrieving it and removing evidence or destroying the device.  At that point, however, the detective had no information that the cellular telephone had been used to plan, commit, or cover up the crime, or that it contained any evidence of the crime.  From experience, the detective was aware, however, that cellular telephones frequently are used when an offense involves multiple perpetrators.  Sixty-eight days later, having held — but not searched — the telephone throughout that period, police obtained a warrant to search it on the basis of information that had emerged after the seizure.  A forensic search yielded evidence relevant to the investigation, which the defendant then […]

Read more...

Posted by Massachusetts Legal Resources - September 28, 2016 at 2:24 pm

Categories: News   Tags: , , , ,

Commonwealth v. White (Lawyers Weekly No. 10-122-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA, 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us   SJC-11497 COMMONWEALTH  vs.  WILLIAM T. WHITE, JR.     Middlesex.      March 4, 2014. – July 11, 2014.   Present: Ireland, C.J., Spina, Cordy, Botsford, Gants, Duffly & Lenk, JJ.   Search and Seizure,  Arrest,  Container,  Inventory,  Plain view,  Protective frisk,  Search incident to lawful arrest.  Constitutional Law,  Search and seizure,  Arrest.  Controlled Substances.  Practice, Criminal,  Motion to suppress,  Warrant.       Complaint received and sworn to in the Cambridge Division of the District Court Department on April 13, 2007.   A pretrial motion to suppress evidence was heard by Severlin B. Singleton, III, J., and the case was heard by Michele B. Hogan, J.   After review by the Appeals Court, the Supreme Judicial Court granted leave to obtain further appellate review.     Edward R. Molari for the defendant. Crystal Lee Lyons, Assistant District Attorney, for the Commonwealth.     GANTS, J. The issues presented in this case concern the lawful scope of a search incident to arrest, an inventory search, and a seizure under the plain view doctrine where a defendant is arrested on outstanding arrest warrants.  Because we conclude that, in the circumstances of this case, the police exceeded the lawful scope of a search under each of these exceptions to the warrant requirement, we reverse the denial of the defendant’s motion to suppress, vacate the defendant’s conviction, and remand the case for a new trial. Background.  We summarize the facts as found by the motion judge, supplementing those findings with evidence in the record that is uncontroverted and that was implicitly credited by the judge.  See Commonwealth v. Isaiah I., 448 Mass. 334, 337 (2007), S.C., 450 Mass. 818 (2008). On the morning of April 13, 2007, Officers Steven Bikofsky and Brian Hussey of the Cambridge police department, while on patrol in a marked cruiser, learned that the registered owner of a motor vehicle they observed had two outstanding arrest warrants, one for violation of a protective order under G. L. c. 209A and another for a drug offense.  They stopped the motor vehicle by pulling behind it and activating the cruiser’s blue lights.  Officer Bikofsky approached the motor vehicle on foot and asked the driver for his driver’s license.  After confirming that the driver (the defendant) was the registered owner, Officer Bikofsky ordered him out of the vehicle, handcuffed him, and placed him under arrest on the […]

Read more...

Posted by Massachusetts Legal Resources - July 11, 2014 at 7:55 pm

Categories: News   Tags: , , , ,

Commonwealth v. White (Lawyers Weekly No. 11-070-14)

NOTICE:  All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750;  (617) 557-1030; SJCReporter@sjc.state.ma.us     12‑P‑1463                                       Appeals Court   COMMONWEALTH  vs.  TIMOTHY WHITE. No. 12‑P‑1463. Norfolk.     October 9, 2013.  ‑  June 23, 2014. Present:  Fecteau, Brown, & Hines, JJ.   Constitutional Law, Public trial, Jury.  Practice, Criminal, Public trial, Empanelment of jury, New trial.  Jury and Jurors.       Indictments found and returned in the Superior Court Department on April 15, 2003.   The cases were tried before Barbara A. Dortch-Okara, J., and a motion for a new trial, filed on September 28, 2010, was heard by her.     Anne M. Thomas, Assistant Attorney General (Dean A. Mazzone, Assistant Attorney General, with her) for the Commonwealth. Rosemary Curran Scapicchio (Dennis Toomey with her) for the defendant.       HINES, J.  The defendant, Timothy White, was convicted after a jury trial in the Superior Court of trafficking in cocaine, G. L. c. 94C. § 32E(b); larceny over $ 250, G. L. c. 266, § 30(1); and conspiracy to traffic in cocaine, G. L. c. 94C, § 40.[1]  He filed a motion for new trial claiming a violation of his right to a public trial under the Sixth Amendment to the United States Constitution and other alleged errors.  After an evidentiary hearing, the motion judge, who was also the trial judge, allowed the motion.  The judge ruled that the closure of the court room for the general questioning of the venire violated the defendant’s Sixth Amendment right to a public trial and that the waiver doctrine did not apply to excuse the violation.  The Commonwealth filed this appeal, conceding the closure during the general questioning of the venire but arguing that it was de minimis and that, as such, it did not violate the defendant’s right to a public trial.  For the reasons explained below, we affirm. Background.  We summarize the facts as found by the motion judge, supplemented with uncontested evidence from the motion hearing to provide context.  See Commonwealth v. Moreau, 30 Mass. App. Ct. 677, 679 (1991), cert. denied, 502 U.S. 1049 (1992); Commonwealth v. Johnson, 82 Mass. App. Ct. 336, 337 (2012).  The defendant, a former sergeant in the State police, was represented by Attorney Robert George, an experienced criminal defense attorney.  The indictments charged that the defendant stole drugs from the State police evidence room and sold them for profit.  Asserting that the indictments had attracted media attention, the defendant’s counsel requested individual voir dire of the prospective […]

Read more...

Posted by Massachusetts Legal Resources - June 23, 2014 at 3:25 pm

Categories: News   Tags: , , , ,

White, et al. v. Hartigan, et al. (Lawyers Weekly No. 10-022-13)

NOTICE: All slip opinions and orders are subject to formal revision and are superseded by the advance sheets and bound volumes of the Official Reports.  If you find a typographical error or other formal error, please notify the Reporter of Decisions, Supreme Judicial Court, John Adams Courthouse, 1 Pemberton Square, Suite 2500, Boston, MA 02108-1750; (617) 557-1030; SJCReporter@sjc.state.ma.us     SJC‑11072   ALBERT WHITE & others[1]  vs.  ANNE M. HARTIGAN, Second, trustee,[2] & others.[3]     Suffolk.     October 4, 2012.  ‑  February 8, 2013. Present:  Ireland, C.J., Spina, Botsford, Duffly, & Lenk, JJ.         Beach.  Real Property, Deed, Beach, Littoral property, Boundary, Easement.  Deed, Construction.  Easement.  Adverse Possession and Prescription.  Practice, Civil, Findings by judge, Statute of limitations.  Limitations, Statute of.  Statute, Retroactive application.       Civil action commenced in the Land Court Department on October 29, 2004.   A motion for partial summary judgment was heard by Charles W. Trombly, Jr., J., and the case was heard by him.   The Supreme Judicial Court granted an application for direct appellate review.     Mark C. Fleming (Richard A. Johnston, Felicia A. Ellsworth, Leon J. Lombardi & Lawrence P. Heffernan with him) for Andrew H. Cohn & others. Brian M. Hurley (Randelle C. Stephenson with him) for Jeffrey Flynn & others. Peter L. Puciloski (David L. Delaney & James B. McLindon with him) for Andrew Kohlberg & another. Roger D. Matthews for Albert White & others was present but did not argue.     LENK, J.  This case involves a dispute over property rights in a 1.7 mile beach parcel on the south shore of Martha’s Vineyard in Edgartown.  Historically, two families — the Nortons (plaintiffs) and the Flynns (defendants) – have owned the property upland from the beach.  For much of the past century, the two families enjoyed a friendly relationship and both families used the beach.  That relationship deteriorated in the early 1980s, and a dispute arose as to title rights to the beach.  In 2004, the Nortons commenced an action in the Land Court to quiet title, ultimately claiming that they owned a fractional interest in the beach or, in the alternative, enjoyed a prescriptive easement to use it and certain land leading to it. The Nortons’ claimed title interest in the beach dates to an 1841 deed which created the beach parcel.  There is no dispute that, due to the erosion of Martha’s Vineyard’s southern shoreline, the beach as it existed in 1841, and even as late as 1938, is now submerged beneath the Atlantic Ocean.  The Flynns claim that the Nortons have no interest in the beach as it is presently located because their title is only to the beach as it […]

Read more...

Posted by Massachusetts Legal Resources - February 8, 2013 at 11:31 pm

Categories: News   Tags: , , , ,